Kevin McAloon v Real Estate Valuers Registration Board

[1988] NSWLEC 130

Land and Environment Court

of New South Wales

CITATION:	Kevin McAloon v. Real Estate Valuers Registration Board [1988] NSWLEC 130
PARTIES:	APPLICANT Kevin McAloon RESPONDENT Real Estate Valuers Registration Board
FILE NUMBER(S):	30062 of 1988
CORAM:	Hemmings J
KEY ISSUES:	:-
LEGISLATION CITED:	Valuers Registration Act 1975 Land and Environment Court Act
CASES CITED:	Builders Licensing Board v. Sperway Constructions (Sydney) Pty Ltd (1976); Superintendent of Licenses v. Ainsworth Nominees Pty Ltd (1987); Meyering v. Northern Territory of Australia (1987)
DATES OF HEARING:	18/12/87
DATE OF JUDGMENT:	07/29/1988
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: Kevin McAloon is registered as a practising real estate valuer pursuant to the Valuers Registration Act 1975 ("the Act"). On 18thDecember, 1987 the Real Estate Valuers Registration Board ("the Board") constituted under s.5 of the Act conducted an inquiry pursuant to s.20. After a hearing the Board found that MrMcAloon was guilty of misconduct in a professional respect, and ordered that his name be removed from the Register. MrMcAloon appeals to this Court against the order of the Board.

Iam informed that this is the first such appeal brought to this Court, and it is common ground that Ishould determine as a preliminary issue the nature of the appeal. No rules of Court have been enacted in relation to the conduct of such proceedings, and the parties are in dispute as to whether fresh evidence may be called on the hearing.

The Board is constituted under s.5 and has, and exercised, prescribed functions and powers under the Act, including registration of various categories of real estate valuers (s.12) after an assessment of their character, competence and experience (s.15 et seq). The Board has certain powers to remove from the Register the name of a registered real estate valuer (s.19) or after inquiry pursuant to s.20.

The subject inquiry arises out of a complaint of alleged misconduct in a professional respect. S.20 provides, so far as it is relevant: |CF2.|PSI

"20. (1) Where the board is satisfied after inquiry that a registered real estate valuer -

b) has been guilty of misconduct in a professional respect;

the board may order-

d) reprimand or caution that real estate valuer;

e) in the case of a real estate valuer (other than a non-practising real estate valuer), suspend his registration for such period, not exceeding the unexpired term of his registration, as it thinks fit; or

f) cause his name to be removed from the register.

(2) Where the board causes the name of a registered real estate valuer to be removed from the register, it may in its order fix a time after which the person whose name is so removed may apply for restoration of his name to the register." |CF1.|PSO

A right of appeal is vested by s.23, which provides:|CF2.|PSI

"23. (1) A person aggrieved-

a) by a decision of the board with respect to an application by the person under section13(1) or 16;

b) * * * *

b1) by the decision of the board to vary under section16A any limitation on his right to practise as a real estate valuer;

c) by any neglect or delay by the board to give within sixty days after receipt by the board of an application by the person under section13(1) or 16 a decision with respect thereto; or

d) by an order of the board under section20,

may appeal to the Land and Environment Court in accordance with the Rules of Court.

(2) An appeal under subsection(1) shall be dealt with by way of rehearing.

(3) The Land and Environment Court, in deciding an appeal under subsection(1), may-

a) confirm the decision of the board appealed against; or

b) substitute for that decision any decision that the board might have made.

(4) The decision of the Land and Environment Court in respect of an appeal under subsection(1) shall be final and shall be given effect to by the board.

(5) Without otherwise limiting or affecting any discretion of the Land and Environment Court with respect to the making of an order as to costs, where in relation to an appeal under subsection(1) against a decision referred to in subsection(1)(a) or neglect or delay referred to subsection(1)(c)-

a) the Land and Environment Court decides the appeal pursuant to subsection(3)(b); and

b) the decision of the Court is made wholly or partly on the basis of evidence given by or on behalf of the appellant which was not given to the board at the time his application for registration or renewal of registration was made and which, but for the failure, neglect or refusal of the appellant, could have been so given,

the court shall take into consideration the failure, neglect or refusal of the appellant before it makes any order as to costs in respect of the appeal." |CF1.|PSO

As the hearing of the appeal is "by way of rehearing" the respondent wishes to call expert evidence additional to that considered by the Board at the inquiry. The appellant submits that the appeal is not a rehearing in its most literal form, but should be dealt with on the evidence and material before the Board with a power to receive further evidence in exceptional circumstances. He therefore concedes that the appeal is not stricto sensu, i.e. where the sole matter for determination is whether the decision of the Board was right or wrong when given on the material before it.

In my opinion, the nature of this appeal is demonstrated by the structure of the Board, the nature of the inquiry and its decision, and the legislation enabling an appeal from that decision. Little assistance, if any, is obtained by an attempt merely to label the Board's decision as administrative or judicial or quasi-judicial. MasonJ. in Builders Licensing Board v. Sperway Constructions (Sydney) Pty Ltd (1976) 135 C.L.R. 616, at 621, said:|CF2.|PSI

"But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing."|CF1.|PSO

The varied forms of the nature of an appeal by way of rehearing depending upon the legislation granting the appeal are considered by MahonyJ.A. in Superintendent of Licenses v. Ainsworth Nominees Pty Ltd (1987) 9N.S.W.L.R. 691, at 705.

The Board has members with appropriate valuation qualifications and the chairman is the person for the time being the Valuer General (s.5). If the Board is satisfied after inquiry that a registered valuer has done any of the things specified, e.g. been guilty of misconduct in a professional respect, it may reprimand or caution him, suspend registration or cause his name to be removed from the Register (s.20). In this matter it served the appellant with notice of such a complaint and of an inquiry to be held pursuant to that section. The inquiry was held on 18thDecember, 1987 and MrMcAloon was represented by counsel to deny the allegations. The Board, after a hearing, made a determination adverse to MrMcAloon.

The right of appeal given from that determination is to this Court and shall be dealt with by way of rehearing (s.23(2)). This generally means that the Court will undertake a hearing de novo, although there is no absolute rule to this effect. The significance of the nature of the original proceedings to determine the nature of the appeal was discussed by MasonJ. in Sperway supra, at 621:|CF2.|PSI

"The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non- justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo. On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving

the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance."|CF1.|PSO

The Board is made up of experts similar to the make-up of that in Sperway's case (supra). The Board has the trappings of a quasi-judicial hearing and must sit as in "open court" (s.21(a)) with a right to be heard in person or by counsel (s.21(b)), and with the powers conferred by the Royal Commissions Act (s.21(d)). On the other hand, it is not bound to observe rules of law governing the rules of evidence (s.21(c), not bound to take evidence on oath, or bound to allow cross examination, or to keep a transcript of the proceedings. No obligation is imposed to give written notice of the allegations or reasons for the Board's determination.

The appellant emphasises that in Sperway's case the inquiry and the determination by that board are two separate and distinct proceedings, although that board is required to consider the evidence at that inquiry. The Board in the subject matter made the determination itself after hearing the parties at the inquiry. This distinction was also relied upon in Meyering v. Northern Territory of Australia (1987) 62L.G.R.A. 160, but MuirheadJ. found that an appeal to the Supreme Court from a determination by a Valuation Board of a claim for compensation for the compulsory acquisition of land was to be dealt with as a hearing de novo. He followed the reasons of JacobsJ. (Sperway supra at 629) when he said that |CF2.|PSI"how far fresh evidence will be received, in the absence of statutory provision and subject to considerations of fairness, reasonableness and justice, depends upon the procedure of the Court to which the appeal lies."|CF1.|PSO

It is common ground that the power of this Court in this appeal also includes that vested pursuant to s.39(3) of the Land and Environment Court Act, which provides:|CF2.|PSI

"3) An appeal in respect of such decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal."|CF1.|PSO

Even in the absence of such statutory power to receive fresh evidence, it is open to the Court to determine whether the scope of the appeal vested by s.3 was intended to be equally wide. In Sperway's case at 629 JacobsJ. said:|CF2.|PSI

"In the absence of statutory provision or of rules governing the procedure of established practice, the adoption of one or another of the courses open, a rehearing de novo or a rehearing on the material before the person or body from whom the appeal is brought with the reception of further evidence, involves the exercise of a judicial discretion applying principles of fairness and reasonableness. The procedure adopted will depend laregly on the nature of the appeal - whether it is from the exercise of an administrative discretion, or from a decision of an administrative tribunal on a question of fact, or the decision of a judicial tribunal on such a question. It will also depend upon the questions in issue in the appeal. Moreover, it may be fair to allow a respondent in the tribunal at first instance to produce further evidence but it may not always be fair to allow the moving party to reframe the case which he made before the tribunal at first instance, a principle of fairness which recalls the old Chancery

rules which I have explored."|CF1.|PSO

In my judgment, the nature of the appeal contemplated by this legislation is an appeal de novo. Neither the Act nor the Land and Environment Court Act place limitations on the nature of the appeal, and the powers of this Court to hear and determine the appeal are wide. Without a clear indication otherwise, Icannot accept that the legislature intended to confine this Court in the scope of the hearing of the appeal.

It is somewhat surprising that in this matter it is the appellant who seeks to limit the scope of the appeal, particularly when the adverse determination by the Board involves the cancellation of registration which constitutes severe consequences, and the deprivation of a valuable privilege. However, Imust consider not only the personal intent of this appellant, and note that in general these matters and considerations of fairness to the appellant make it more likely that the appeal to this Court involves a hearing de novo.

I order:

1. The appeal proceed by way of hearing de novo.

2. Liberty to apply as to directions.

3. Costs of this application to be costs in the proceedings.